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Federal Powers and Separation of Powers - Legislative Department

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Article I of the Constitution created the legislative department, also known as Congress, comprised of the Senate and the House of Representatives. The Senate contains 100 members, two from each of the 50 states. While originally elected by their state legislatures, senators today are elected by the people and serve six year terms, with one third of the Senate up for reelection every two years. Through legislation in 1929, Congress set the total number of representatives in the House at 435. The people elect their representatives every two years, with the national census determining the number of representatives for each state.

Congress' enumerated powers and restrictions are more detailed than for any other branch, probably because the framers were most concerned with abuse of legislative power. Under the Taxing and Spending Clause, Congress may "lay and collect taxes, duties, imports, and excises, to pay the debts and provide for the common defense and general welfare of the United States." Domestically, the Commerce Clause gives Congress exclusive authority to regulate anything that has the slightest effect on, or connection with, commerce that crosses state boundaries. Internationally, Congress may regulate foreign affairs through its power to raise and finance an army and navy, declare war, and regulate foreign commerce. Congress also may enact any law "necessary and proper" for carrying out its enumerated powers. This has been called the "elastic clause" because it allows Congress to enact any law for which it has a plausible justification under its specified powers.

Influenced by the Intolerable Acts, however, the framers carefully formulated restrictions on Congress' power. Except in the cases of rebellion or invasion, Congress cannot eliminate the right to a writ of habeas corpus, which is a court order requiring an explanation of why a prisoner is being held. Congress also may not pass a bill of attainder, which is a law imposing punishment without trial on a specific individual. Finally, Congress may not pass an ex post factolaw, which retroactively declares an act to be criminal. Other major restrictions appeared later in the First Amendment to the Constitution, contained within the Bill of Rights and adopted in 1791. Under the First Amendment, Congress may not pass legislation establishing, forbidding, or governing religion. Congress also may not abridge the freedom of speech, freedom of the press, the right of peaceful assembly, and the right to petition government for a redress of grievances.

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